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Appeals Judges Uphold Lubanga’s ICC Conviction and Prison Sentence

Appeals judges at the International Criminal Court (ICC) have upheld the conviction of Congolese opposition leader Thomas Lubanga, who in March 2012 became the first individual to be convicted by the court.

The judges, who delivered their judgment this afternoon, also confirmed the 14-year prison sentence that trial judges handed Mr. Lubanga.

The prosecution had asked judges to raise the sentence, terming the 14 years “manifestly disproportionate” to the crimes he was convicted of. Mr. Lubanga had asked the appeals judges to lower the sentence.

In a ruling read by Judge Erkki Kourula, a majority of judges rejected all seven of Mr. Lubanga’s appeal grounds. Judge Anita Ušacka dissented, while Judge Sang-Hyun Song partially dissented.

The former leader of the Union of Congolese Patriots (UPC) was convicted over the conscription, enlistment, and use of children under the age of 15 in armed conflict. The crimes were committed during 2002 and 2003 in an ethnic conflict that mainly pitted his Hema ethnic group against the Lendu and Ngiti in the Democratic Republic of Congo’s Ituri province.

In her dissenting opinion, Judge Ušacka said she would not have convicted Mr. Lubanga of these crimes on the basis of the evidence that the trial chamber relied on. She singled out the fact that nine witnesses presented by the prosecution as former child soldiers in the UPC were found by judges to have lied about their identities, ages, and having served with the group.

For five years, the trial had proceeded on the basis that these nine were the material basis of the trial, said the judge. This deprived the accused of “a meaningful opportunity to challenge the evidence at trial.”

Consequently, said Judge Ušacka, conclusions of the trial judges suffered the same level of imprecision and the evidence they relied on to convict him was “not enough to reach the threshold of reasonable doubt.”

The judge also noted that determining the age of an individual on the basis of physical looks was very complex and prone to error. She said trial judges relied on age estimates given by lay witnesses, their own assessment based on videos showing young UPC soldiers, and the group’s internal letter that referred to demobilization of children aged 10 to 15 or 16.

According to Judge Ušacka, the lay witnesses often did not say how they knew the children were under 15. As for the video, she said the children depicted were only partly visible and their sizes were unclear but trial judges had determined that the “images spoke for themselves.”

She added that the most visible person in the video was located by the defense and called to provide testimony in the appeals phase, during which he stated that at the time of recording the video, he was aged between 19 and 20. Another person depicted in the video testified in the appeals phase that he was between 17 and 18 at the time.

Judge Ušacka disagreed with the majority decision not to admit this evidence. She said this evidence could have had the potential to demonstrate that the approach of the trial chamber was flawed and impacted on conviction.

The majority found that the evidence was inadmissible because either it was available at trial or the appeals chamber did not find that, had this evidence been admitted at trial, it could have led the trial chamber to render a different decision.

Mr. Lubanga, the first person ever to be tried by the ICC, has been in custody of the court since 2006. His trial opened in January of 2009. Bosco Ntaganda, who served as the UPC’s deputy chief of staff, was initially indicted together with Mr. Lubanga but evaded justice until March last year when he voluntarily surrendered to the court. His trial is scheduled to open next June. He faces 18 charges of war crimes and crimes against humanity.

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